3. STATUTES — State Office Building Commission — Validity. A statute which directs and authorizes the governor to appoint a seven member commission for the performance of executive duties entirely from members of the legislature is unconstitutional and void as violating the constitutional principle of separation of powers. 4. CONSTITUTIONAL LAW — Unconstitutionality of Commission — De Facto Body. From the time of the creation of the State Office Building Commission until the date of this decision declaring it unconstitutional and void, it was a de facto commission and the acts of its members, officers and employees were acts of de facto officers, binding as such, between the commission or its officers and all third persons dealing with it as a public commission or them as public officers ( State, ex rel., v. Hodgson, 183 Kan. 272, 326 P.2d 752). 5. STATE — Management of State Property. The management of all state property now under the control of the State Office Building Commission shall after the filing of this opinion devolve upon the executive council.
Here the court will consider both the nature and objective of the legislation as well as the conditions and circumstances under which the statute was enacted. See Jack v. State, supra note 23 82 P.2d at 1036; State v. Hodgson, 183 Kan. 272, 326 P.2d 752, 758 [1958] and State Board of Regents v. Lindquist, 188 N.W.2d 320, 324 [Iowa 1971]. Under the third prong, the court must determine if the special legislation is reasonably and substantially related to a valid legislative objective.
The language of the third clause had been interpreted to impose a duty on the courts to determine a statute's validity without regard to anything the legislature had declared. 192 Kan. at 614 (quoting Water District No. 1 v. Robb, 182 Kan. 2, 318 P.2d 387; and State, ex rel., v. Hodgson, 183 Kan. 272, 326 P.2d 752). Thus, the presumption of validity did not apply.
For similar reasons, we found the borough incorporation procedures at issue in Walters v. Cease, 394 P.2d 670 (Alaska 1964), to be local and special legislation. For other jurisdictions which have upheld laws responding to unique situations in the context of similar constitutional challenges, see e.g., State v. Reynolds, 71 N.M. 389, 378 P.2d 622 at 626 (1963); County of Cameron v. Wilson, 160 Tex. 25, 326 S.W.2d 162, 165 (1959); Berry v. Milliken, 234 S.C. 518, 109 S.E.2d 354, 356 (1959); State v. Hodgson, 183 Kan. 272, 326 P.2d 752, 758 (1958). In summary, we hold that the plaintiffs have standing to contest the validity of Chapter 19, SLA 1976 under the facts of this case.
( 63 Kan. at 823.) See also, State, ex rel., v. State Office Building Commission, 185 Kan. 563, 345 P.2d 674; State, ex rel., v. Hodgson, 183 Kan. 272, 326 P.2d 752; State v. Roberts, 130 Kan. 754, 288 P. 761; Briggs v. Voss, 73 Kan. 418, 85 P. 571. And cf., Stawitz v. Nelson, 188 Kan. 430, 362 P.2d 629. If an objection is to be made to the authority of such an officer it must be made at the time he acts. An objection made on appeal is too late. Parvin v. Johnson, 110 Kan. 356, 203 P. 721; City of Wellington v. Wellington Township, 46 Kan. 213, 26 P. 415; Higby v. Ayres and Martin, 14 Kan. 331. Both appellants had notice of the hearing and both appeared and participated without objection.
We do not think this is what the framers of our constitution intended.Accord, State v. Hodgson, 183 Kan. 272, 326 P.2d 752, 762 (1958); see also Albuquerque Met. Arroyo Flood Control Authority v. Swinburne, 74 N.M. 487, 394 P.2d 998 (1964). We find nothing in the nature of the Eagle River-Chugiak area which justifies a departure from the general law scheme of incorporating a new borough.
In determining whether a general law can be made applicable, courts consider the nature and purpose of the legislation and the conditions and circumstances under which it was enacted. State ex rel. Anderson v. Hodgson, 183 Kan. 272, 326 P.2d 752; Higgins v. Board of Comm'rs of Johnson County, 153 Kan. 280, 560, 112 P.2d 128. If a general law clearly can be made applicable, a special law is impermissible. Heckler v. Conter, 206 Ind. 376, 187 N.E. 878; cf. Owens v. Smith, 216 S.C. 382, 58 S.E.2d 332.
In construing their own "mandatory clauses," many courts treat this language as an enforceable constitutional restriction against the passage of any special, local or private law except where the situation on its facts legitimately requires special treatment thus prohibiting any arbitrary legislative discrimination between members of a proper class. See, e.g.,State ex rel. Anderson v. Hodgson, 183 Kan. 272, 326 P.2d 752 (1958); Jack v. State, 183 Okla. 375, 82 P.2d 1033 (1938); Heckler v. Conter, 206 Ind. 376, 187 N.E. 878 (1933); City of Springfield v. Smith, 322 Mo. 1129, 19 S.W.2d 1 (1929); Woodall v. Darst, 71 W. Va. 350, 77 S.E. 264 (1912). In other jurisdictions, however, the courts treat the language as merely cautionary to the legislature rather than an enforceable prohibition against special, local or private legislation in cases not falling within any of the specifically enumerated prohibitions holding the legislative determination that a general law could not be made applicable is not reviewable by the judiciary.
Accord, State v. Atchison T. S.F. Ry., 20 N.M. 562, 151 P. 305. Manifestly, an act which creates and establishes a flood control district by legislative act, fixing its boundaries by specific description so as to constitute a single compact geographic area, is a special law. State ex rel. Anderson v. Hodgson, 183 Kan. 272, 326 P.2d 752. Merely because a legislative act is special in its application, however, does not necessarily make it in violation of the constitutional restriction.
(Emphasis added.) In State, ex rel., v. Hodgson, 183 Kan. 272, 326 P.2d 752, it was said: "The effect of the amendment of 1906, with respect to the second clause of the section, was to transfer to the courts the 'discretion' theretofore vested in the legislature of the relative propriety of whether a general law could be made applicable, i.e., 'was more expedient,' and to make the question a judicial one, without an express criterion as to 'where a general law can be made applicable.'